COMMISSIONER OF C. EX. Vs. OLIVE HEALTHCARE

JUDGEMENT

(1.) ALL the three appeals -two filed by the assessee and one filed by the Revenue are being disposed off by a common order as they arise out of the same impugned order passed by Commissioner (Appeals). After hearing both sides, we find that the dispute is in respect of valuation of the physician's samples of medicaments which are distributed free of cost by the appellant. The Commissioner (Appeals) has held that the Board's circular No. , dated 25 -4 -2005, which supersedes the earlier Circular No. , dated 1 -7 -2002 will have retrospective effect as the same is in the nature of clarification. Inasmuch as the later circular dated 25 -4 -2005 requires determination of physician's samples in terms of Rule 6 of Central Excise Valuation Rules, 2000, he has upheld the order of original adjudicating authority and has confirmed the duty and imposed penalty. The appellant's contention is that the period involved in the present appeal is from July 2003 to March 2004 in the first show cause notice and April 2004 to December 2004 in the second show cause notice. As such, the entire period involved in both the appeals is prior to 25 -4 -2005, when the subsequent circular was issued. During the period in question, the earlier circular of the Board issued on 1 -7 -2002 was governing the field. The department is bound by such circulars, as held in number of judgments and as such the assessment of physician's samples is required to be made in terms of Board's circular dated 1 -7 -2002.

(2.) FOR the above proposition, learned advocate relied upon the Tribunal's judgments in the case of CCE, Daman v. Wockhardt Ltd. -, 2009 (241) E.L.T. 114 (Tri -Ahmd.), CCE, Daman v. Indchemie Health Specialties Pvt. Ltd. -, 2009 (239) E.L.T. 33 (Tri -Ahmd.), M/s. Meridian Enterprises Pvt. Ltd. v. CCE, Daman -, 2008 (232) E.L.T. 838 (Tri -Ahmd.), M/s. Bezel Pharma Pvt. Ltd. v. CCE, Mumbai -V -, 2008 (221) E.L.T. 512 (Tri. -LB). He has also made reference to Hon'ble Supreme Court's judgment in the case of M/s. Suchitra Components Ltd. v. CCE, Guntur - : 2007 (208) E.L.T. 321 (S.C.) : 2008 (11) S.T.R. 430 (S.C.), laying down that the beneficial circular are to be applied retrospectively and oppressive circulars are applicable only prospectively.